STORY ST. ABUTTERS LTR, LEGAL OPINION 07/31/2008 Linda Tardiff
..From: Thomas Stpierre[TStpierre@Salem.com]
Sent: Tuesday;August 05,2008 9:221AM
To: satindollinc@mmcast.net
Subject: Story Street memo.doc
Attachments: oledata.mso
�coemur C' TY O SALEM I
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LEGAL DEPARTMENT'
0WASHIIdG DON STREET SALEM,MASSA&'USE'M O1976
r TEL•,978-745-9595*FAM 978-7444327
Ka GERM DRISCOLL ELULABETH RENNARD' �ESQ. ,
MAYOR 1 ' I. )'LR/' M PARISELL�ESQ.
Cr Y SOLIC TOR ASST.Cmr
i SOLICITOR
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MEMORANDUM
To: Thomas, t.!Pierre, Building Commissioner
From:Jerald�,PariSella, Assistant City Solicitor
RE: Story Street
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July 31 2008 1t'
You have asked that I provide'a1egal opinion concerning the rights and.responsibilities of owners,of land that
abut a private'dr public way; specifically;'the abutters to Story. Street.
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It is',my opiglon that-Story Street is a pu> lic way,that extends aboui 398 feet or so westerly.from'.Jefferson
Avenue.'In 1910'the City Council'approved'the lay out of Story Street for a length'of,,;oput 163, with a width of
about 40 feet. In 1913 the City Council''extended Story Streetanother roughly 236`-feet: Story$treet is shown on
Assessor's Map 23. However,the Assessor's'Map shows Story Street extendip ' all the way to Willson Street. I
believe this extension is from a 1915 plan,re'corded at the Registry of Deeds that proposed a subdivision. This
extended road was called Sainte Anne's Perk on the plan.
According to City Clerk records, Sainte Anne's Park was never accepted as'a public way,,therefore, I believe
Story Street as'a public way ends roughly"'shown on the Assessor's Map as outlineo'by a rectangular line laid
out over Story',Street. The end of Story Street is also shown on'a plan recorded at the,Registry'of Deeds at Plan
Book 410,P1an 16. The rest of the way iS priyate,'and is commonly,referred to as'a,paper,street.
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City;ways'are open to use by the generalippbUc equally,The general rule is thAfpnvate citizens do'.not have a
light to make repairs to public ways. Perry v.'.Planning Board of Nantucket;'15 Mass:App:Ct. 144(1983).,
Owners of land that abut a private way have rights to use and pass over the way. "T,he title of persons who
acquire land'bounded by a street or way runs to the center line of the way and carries with;it the fight to use the
way along its entire length."Brennan V. DeCosta,'24'Mass.App.d. 968 (190),"interpre'ting G.L'. c. 183 sec. 58.
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T 11is a, P i, cludes the right of abutters to make reasonable repairs to the private way. Hodgkins v. Bianchini,
323 Ma,S. l 9.
However;be use abutters to a private way have equal access to the way, I do not believe a neighbor has a right
to obstruc t .e way, or prohibit access to it.
If a neighbor is obstructing access to a private way,,then this type of dispute should be resolved in a civil action
in the appropriate Court. I do not see a reason why the City would be involved in such a matter.
Specifically related to Story Street, Mr. Lovely erected two posts so that he could'attach a chain to them and
block access to the private way. It appears these posts were installed beyond Story Street and in the private way.
Mr. Lovely states that he has ownership rights to this area by adverse possession,''I make no determination
regarding this claim. If these items were erected on the private way, then this matter should be resolved amongst
the abutters to the way, and the City should not involve itself in the dispute regarding blocking the way.
If the posts were erected without proper permits or approvals, such as building permit or approval from the
Conservation Commission, then the City does have jurisdiction regarding these matters. As building
commissioner, you should determine if a building perrnit is needed, and the Conservation Commission has
jurisdiction to rule if the installation was.done within the buffer zone of wetlands, and if an order of conditions
or other approval is required.
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